Sniff, Collect, and Exploit it All

The easy shot against Glenn Greenwald’s No Place to Hide: Edward Snowden, the NSA and the U.S. Surveillance State would be to dismiss its warnings as immoderate and overwrought. “Converting the Internet into a system of surveillance,” he declares nearly off the bat (6), turns it “into a tool of repression, threatening to produce the most extreme and oppressive weapon of state intrusion human history has ever seen.” Similarly, “[t]he US government had built a system that has as its goal the complete elimination of electronic privacy worldwide.” (94) These are bold claims on which to deliver. And yet, piling evidence atop evidence, Greenwald does.

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A Failure of Intelligence

Last week, intelligence officials and congressional overseers were telling the Wall Street Journal that the U.S. government had been surprised by Vladimir Putin’s seizure of the Crimea “because they hadn’t intercepted any telltale communications where Russian leaders, military commanders or soldiers discussed plans to invade.” Meanwhile, debates on intelligence within the government and the policy community were focusing on how to regulate the interception of ordinary Americans’ communications. Establishment Republicans were particularly keen on making sure the practice continued.

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Obamacare, the NSA’s Metadata Collection Program, and the Separation of Powers

US-POLITICS-OBAMA-RETURNThe brilliant light that burst over the Northwest quadrant of the nation’s capital Thursday was not a sunrise. Illuminating the skies above the White House was the light bulb of discovery, in this case of an antiquated constitutional ideal: the separation of powers. The NSA metadata program having been authorized by Congress, the President announced plans to seek its reform by Congress. He is to be commended for involving the legislative branch of government in a decision involving, well, legislation.

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The Irony of American Exceptionalism

This week brought the stunning news that Russia has deployed technology that records every phone call made in the United States, keeps it for 30 days, and retrieves segments for listening and long-term storage.

Not really. But the United States has done precisely this to telephone users in an unknown target country. Leaked documents indicate “every single” call there was recorded—not merely metadata that tracks numbers called, but the actual content of conversations.

Consider that inversion a political Rorschach test. There is a breed of American elite whose mood, upon reaching the end of the second paragraph, would instantly melt from outrage to relief. That breed lacks the political virtue par excellence—prudence—and it is getting us into trouble.

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Dianne Feinstein: Whose Ox is Being Gored?

Recently, Senator Dianne Feinstein objected to CIA surveillance of Senate committee staffers who were looking through classifed documents relating to the agency's previous interrogation and detention practices.  Feinstein, who has generally been supportive of NSA monitoring, has been criticized on the ground that she only objected to government surveillance when it affected her. Feinstein has now opened herself up to more criticism of this sort. In an interview with CBS’s “60 Minutes” that aired on Sunday night, the California Democrat said a drone spied into the window of her home during a protest outside her house, and that privacy concerns for the…

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Permanent War vs. Peace

“America must move off a permanent war footing,” said Barack Obama in his fifth mockery of the State Of The Union address. He coupled these words with a commitment to “keep strengthening our defenses” at home – meaning enhancing the very “homeland security” measures that are the essence of that war footing. Then, confronting popular outrage against the most serious of those permanent war measures, namely the NSA’s collection of ordinary Americans’ electronic communications, Obama cunningly pledged only to enhance confidence in them, having made clear elsewhere that he would not alter their substance.

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By Their Fruits Shall Ye Know Them

A New Year’s wake-up call from the International Business Times: “In their annual End of Year poll, researchers for WIN and Gallup International surveyed more than 66,000 people across 65 nations and found that 24 percent of all respondents answered that the United States “is the greatest threat to peace in the world today.” Pakistan and China fell significantly behind the United States on the poll, with 8 and 6 percent, respectively. Afghanistan, Iran, Israel and North Korea all tied for fourth place with 4 percent.”

This confirms what international travelers sense: whereas not so long ago foreigners saw Americans as the embodiment of peace and freedom, a plurality now see us as a source of trouble for themselves. For more people than not, being on America’s side now means being on the side of trouble. Why? And what is that to us?

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Friday Roundup, January 3rd

The January Liberty Forum seeks to recover perhaps a forgotten connection between the Bill of Rights and the structural limitations on power in the Constitution. Patrick Garry leads off with an essay that answers the question: What should be the focus of the Bill of Rights? Responses to follow from Ed Erler, Michael Ramsey, and Ken Bowling. Our Books section this week features Alex Pollock's review of Greenspan's The Map and the Territory. The current Liberty Law Talk is with 2013 Bradley Prize recipient Yuval Levin on his new book, The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right…

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More on Andrew McCarthy and the Proposed NSA Reforms

In my prior post, I criticized Andrew McCarthy’s criticisms of the proposed reforms of the NSA programs. Here I offer a couple of additional thoughts on McCarthy’s criticisms.

McCarthy argues that the Framers would not have wanted the courts reviewing national security decisions, such as whether the executive had a good-faith national-security purpose for the search. But as I noted in my prior post, the Constitution through the Fourth Amendment authorizes the courts to make these decisions if a citizen is being searched as to his home or other place within the scope of the Fourth Amendment.

McCarthy appears to want to distinguish these cases from the NSA programs by claiming that the NSA programs do not effect constitutionally protected searches. While that may be true under existing Supreme Court precedent, he makes a claim about the Framers and that raises different questions. Two Supreme Court doctrines suggest that these searches do not implicate the Fourth Amendment. One is the third party doctrine, which suggests that records held of phone calls by a cell phone company are not protected by the Fourth Amendment. Another is the related doctrine concerning metadata, such as your phone number or the phone number you called, that asserts such data are not protected by the Fourth Amendment.

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